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' ^ ARGUMENTS 

I ' BEFORE THE COMMITTEE ON PATENTS^OF 
THE HOUSE OF REPRESENTATIVES 



ON 



H. R. 12368 

TO AMEND THE STATUTES RELATING TO PATENTS 
AND 

THE PATENT SYSTEM 



BY 
FRANK L. DYER 



nVI^RCH: 16, 1910 



COMMITTEE ON PATENTS, HOUSE OF REPRESENTATIVES 

-^ SIXTY-FIRST CONGRESS 

FRANK D. CURRIER, New Hampshire, Chairman. 
EDMUND H. HINSHAW, Nebraska. . IRVINE L. LENROOT, Wisconsin. ,. 

E. STEVENS HENRY, Connecticut. WILLIAM SULZER, New York. 

CHARLES B. LAW, New York. , GEORGE S; LEGARE, South Carohna. 

BENJAMIN K. FOCHT, Pennsylvania. WILLIAM B. WILSON, Pennsylvania,- 

WILLIAM W. WILSON, Illinois. WILLIAM A. OLD FIELD, Arkansas. 

GUSTAV KUSTERMANN, Wisconsin. MARTIN A. MORRISON, Indiana. 

JAMES JOYCE, Ohio. 

Edward A. Barney, Clerk. 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1910 



WAY 15 191? 







"i ^ 


^ -*! 





ARGUMENTS ON H. R. 12368. TO AMEND THE STATUTES RELATING 
TO PATENTS AND THE PATENT SYSTEM. BY FRANK L. DYER. 



Committee ox Patents, 

House of Representatives, 

Wednesday, March 16, 1910. 
The committee this day met, Hon. Frank D. Currier (chairman) 
presiding. 

The Chairman. Y^ou. may proceed, Mr. Hayden. 

STATEMENT OF MR. JAMES H. HAYDEN, ATTORNEY FOR THE 
NATIONAL ELECTRIC SIGNALING (iOMPANY, WASHINGTON, 
D. C. 

Mr. Hayden. Mr. Chairman and gentlemen, the company that I 
represent is the owner of a number of United States letters patent 
for improvements in wireless communication invented by Prof. P. A. 
Fessenden. It claims that its inventions have been used and are 
being used by the Government. The Government concedes that it 
is using them, but up to this time, the company has had no remedy 
by which it can secure from the Government reasonable compensa- 
tion for the use of its patents. A bill identical with the one under 
consideration passed both Houses at the last Congress, but was not 
signed by the President and failed to become law. I can abbreviate 
my remarks by saying that the very thorough and able report made 
by Mr. Hinshaw in behalf of this committee at the last Congress 
presents our case. YYe could not improve on that statement. 

The Chairman. Let me ask you a question. Y'^ou were here one 
day with a suggestion that this bill be modified so that it should 
not apply to the continued use by the Government of any infringing 
device that the Government owned at the time of the passage of the 
act. 

Mr. Hayden. As far as my client is concerned, that is true. We 
do not wish to appear before this committee in the light of ordinary 
claimants seeking compensation for something that has been done. 
We want a remed}^ for the future; but in saying that, I do not pretend 
to bind any other interest. This bill is a public measure. It was 
brought to the attention of the American Bar Association at Detroit 
last summer. A resolution indorsing it was adopted: 

Resolved, That the report of the committee on patent, trade-mark, and copyright law 
on the subject of additional remedies for the protection of patented property, and the 
bill reported by the committee (bar association — patent, trade-mark, and copyright 
law) be approved by the association, and the committee be instructed to use their 
best efforts to secure the passage of the bill. 

3 



v-^ - /^^ 77 



4 STATUTES KELATING TO PATENTS. 

The committee made a very complete report, in which it considered 
the whole matter, and, adopting the conclusions expressed by Mr. 
Hinshaw in behalf of this committee, advised that the Bar Associa- 
tion go on record as advocating the passage of the bill. 

The Chairman. Can you put that report in the record ? 

Mr. Hayden. I shall be glad to. It appears on page 514 of the 
Report of the American Bar Association for 1909. 

The report referred to by Mr. Hayden follows : 



REPORT OF THE COMMITTEE ON PATENT, TRADE-MARK, AND COPYRIGHT LAW- 
TIONAL PROTECTION FOR OWNERS OF PATENTS. 



-ADDI- 



To the American Bar Association: 

Your committee on patent, trade-mark, and copyright law beg leave to submit the 
following report with reference to the creation of an adequate remedy for owners of 
patents whose inventions are used by the United States without payment of royalty 
or agreement to compensate the patentees. The matter is one of greater and wider 
interest than might be supposed . The Government is not only an enormous consumer, 
but likewise a very large manufacturer of patented articles. The status of a patent 
as private property, which even the Government is prohibited from taking for public 
use without compensation (amendment to the Constitution, Article V), has been 
declared and redeclared in many opinions by the Supreme Court of the United States. 
(McKeever -v. United States, 14 Ct. Cls., 396; affirmed S. C. 18 Ct. Cls., 757; James v. 
Campbell, 104 U. S., 356; Hollister v. Benedict & Burnham Manufacturing Company, 
113 U. S., 59; United States v. Palmer, 128 U. S., 262; Solomons v. United States, 137 
U. S., 346; Belknap et al. v. Schild, 161 U. S., 10, and numerous other cases.) 

But it has been held, also, that in the absence of an express contract between the 
owner and the Government or of transactions between them from which an agreement 
by the Government to pay a reasonable royalty must be implied the patentee has no 
remedy at law or by executive action and must obtain relief, if at all, by appeal to 
Congress. (Schillinger v. United States, 156 U. S., 163; Russell v. United States, 182 
U. S., 516; Bigby v. United States, 188 U. S., 400; McKeever v. United States, 14 Ct. 
Cls., 396; Butler v. United States, 23 Ct. Cls., 335; Eager v. United States, 35 Ct. Cls., 
556.) With respect to tangible property, such as real estate, the courts have implied 
an agreement by the Government to make reasonable compensation for property taken 
from the mere act of appropriation. In United States v. Lunah (188 U. S., 445) it 
appeared that certain lands were overflowed in consequence of improvements made 
by the Government in a navigable river. The court held that this was a taking of 
private property for public use and that the owner was entitled to recover compensa- 
tion for it in an action brought in the Court of Claims under the act of March 3, 1887, 
known as the Tucker Act. But the courts have assumed a very different attitude 
toward patents, holding that one claiming royalty must show (1) his ownership of 
the patent, (2) the beneficial use by the Government of the patented invention, and 
(3) that the taking and use of his invention occurred, with the patentee's consent, by 
order of a responsible official of the Government and with the distinct understanding 
that reasonable royalty should be paid for such use of the invention as the Government 
might see fit to make . (See authorities cited . ) The policy of the Government through- 
out its several departments when procuring materials or articles of any kind by con- 
tract is to require the contractor to furnish bond to indemnify the Government against 
the claims of patentees for the use of inventions embodied in such materials or articles. 
This, however, is not designed to and does not afford protection to patentees, who 
derive no remedy against the contractor on the bond for the use which the Government 
makes of infringing articles and have no remedy against the Government. 

At the Fifty-ninth Congress a bill was introduced in both Houses of Congress which 
provided for the amendment of section 4919 of the Revised Statutes in such manner 
as to give patentees a remedy by suit in the Court of Claims for any use made of their 
inventions by the Government without their consent or provision for their compen- 
sation, reserving to the United States, however, all defenses of which an individual 
might avail himself in a suit for infringement, including those based upon the inva- 
lidity of the patent in question, the lack of novelty or priority of invention, non- 
use by the Government, etc. The Senate bill was introduced by Mr. Knox and 
the House bill by Mr. Dalzell. Both bills were reported favorably by the respective 
Committees on Patents. The committee of the House of Representatives amended 
the bill, however, by inserting apt words to prevent its being retroactive in any respect. 
The bill passed the Senate without a dissenting vote, but in consequence of the 



STATUTES KELATIXG TO PATENTS. 

length of the calendar was not reached for consideration in the House. At the Six- 
tieth Congress identical bills were introduced by Senator Knox and Mr. Dalzell. 
Again the House bill was amended in such manner as to prevent its being given a retro- 
active effect, and as amended was favorably reported by the Committee on Patents 
of the House of Representatives. Mr. Hinshaw, speaking for the committee, said, 
among other things : 

"It seems to be necessary and proper to provide for patentees a remedy, such as 
the passage of this bill will secm'e, for the invasion of their rights. Without such 
remedy, patentees ai'e the only persons who are outside the protection of Article V of 
the Amendments of the Constitution: 'Nor shall private property be taken for public 
use without just compensation.' 

"Without such remedy a patent is not what it pm-ports to be on its face. Many 
inventors have spent years of their- lives and practically banki'upted themselves in 
developing inventions primarily of use to the Government, only to find in the end, 
after their property has been seized by the Government that they have no legal means 
of redress, and that the governmental departments will not recognize the decisions of 
the com'ts. 

"Without such remedy there is a ridiculous discrimination between inventors. 
The inventor of a children's game or of a new brand of chewing gum is protected by 
the courts. But the inventor of a de^dce which may saA'e the nation from an humili- 
ating defeat in time of war, or reduce the cost of carryino- the mails, or reduce the num- 
ber of shipwrecks on the coast, is afforded no protection; the governmental depart- 
ments have the power to confiscate his property and habitually exercise that power. 
* * * * * ' * * 

"The claim is made by some that the Government, being the grantor of the patent, 
ought to have the right to use without compensation such inventions as are necessary 
for its pm-poses. 

"One answer to this is that there is no such limitation or reservation in the law 
governing the granting of patents; and another answer is that if that were the law 
there would be no time, brains, or money spent by anyone in inventing those things 
for which there would be no remuneration." 

Attention was called, also, to the fact that among ci\T-lized nations, the United 
States and Russia, alone, have failed to provide a regular and orderly legal proceeding 
for the compensation of patentees by the Government, for the use of their inventions. 
Russia has some excuse for withholding a remedy, for it does not recognize the in- 
ventor's right as against the Government. In the United States the right of the 
patentee is recognized and guaranteed by law, but rendered ineffectual by lack of 
remedy. The bill above referred to in the Sixtieth Congress passed the House by a 
large majority, and, at the instance of Senator Knox, passed the Senate by a unani- 
mous vote, without the formality of a submission to the Committee on Patents. There- 
after the bill was submitted to President Roosevelt. He declined so late to approve 
it, and Congress adjourning the next day. it failed to become a law. 

The bill as it passed both Houses at the Sixtieth Congress has again been introduced 
in the Sixty-first Congress. Mr. Dalzell has introduced it in the Souse of Representa- 
tives, and Senator Knox having resigned to become Secretary of State, it was intro- 
duced in the Senate by his successor. Senator Oliver. It is believed that the bill is a 
just one and should pass and that the matter is one of sufficient importance to the 
many inventors and patentees of the country to justify a favorable recommendation 
by the American Bar Association of Senate bill 1745, Sixty-first Congress, first session, 
A copy of the bill is appended hereto. 

Robert S. Taylor, Chairman. 
Arthur Steuart. 
Otto R. Barnett. 
Joseph R. Edson. 
Frederick P. Fish. 

Mr. Hayden. To sum up our position: The Constitution provides 
for the granting of patents and, the courts of the United States, 
inchiding the Supreme Court, have held over and over again that 
a patent is property mthin the meaning of the amendment to the 
Constitution which says that private property shall not be taken for 
public use mthout compensation. But there is no remedy by which 
a patentee can get such compensation for the use that the Govern- 
ment makes of his patent unless he happens to have a contract. 



6 STATUTES RELATING TO PATENTS. 

In nine hundred and ninety-nine cases out of a thousand he is una- 
ble to secure recognition from the Government which is equivalent to 
a contract. In practically every case some official simply appropri- 
ates the patentee's property. 

Mr. KtJSTERMANN. Now, do you not believe the better way would 
be to have the same practice that they have in Great Britain and 
Germany — if the Government uses a patent, then leave the price of 
it to a certain commission? Do you not believe that that would be 
better than to have a court decide the matter, which in most cases 
is expensive ? 

Mr. Hayden. I think, sir, it would be no more expensive to have 
the Court of Claims of the United States, which is in effect a commis- 
sion, take charge of such business. Let it determine judicially 
whether a use has been made; and if so, the value of such use. In 
fact, we refer as precedents to the practice prevailing in Great Britain 
and every civilized country of the world, except the United States 
and Russia. There patentees are paid by their governments for the 
use made of their inventions and have a regular judicial remedy by 
which to obtain compensation. 

The Chairman. Have the provisions of the patent laws of foreign 
countries been put into the record at any time ? 

Mr. Hayden. I do not think they have. 

The Chairman. I have an impression that they might be useful 
to the committee. 

Mr. King. If you will look at page 49 of the hearings which took 
place on February 23 and 24, 1910, you will see the laws for a number 
of countries. 

Mr. Wilson, of Illinois. Is there any information before this com- 
mittee about the Government having the privilege for their own use ? 

Mr. Hayden. This bill does not relate to any particular patent. 

Mr. KtJSTERMANN. I uudcrstood that there was an offer made. 

Mr. Hayden. There was no offer made for a license under patents 
of the National Electric Signaling Company. 

Mr. KtJSTERMANN. No offcr of any kind ? 

Mr. Hayden. No, sir. 

Mr. KtJSTERMANN. The party seemed to be directly interested. 

Mr. Hayden. He was misinformed, and to you he made a misstate- 
ment. 

Mr. Lenroot. Has the Government recognized your patents ? 

Mr. Hayden. No more than by, granting letters patent, which is a 
recognition of the invention. Professor Fessenden was employed for 
about a year in the Weather Bureau. One or two of his early inven- 
tions were produced during his employment, but all of his later ones 
have been produced since, and as to them the Government has given 
no recognition other than this, that some of the patents have been the 
subject-matter of suits in the circuit court of the United States and 
have been sustained. Infringements of them have been restrained. 
In one case suit had been brought against an infringing company and 
an injunction obtained. That company tendered identical wireless 
material to the Navy Dej^artment. We protested against the Navy 
Department's purchasing the material from the infringer, saying that 
a court of the United States had enjoined it from furnishing such 
material. The department replied to that, however that might be, 
they preferred to purchase material in the cheapest market and leave 



STATUTES RELATING TO PATENTS. 7 

it to the private interests to work out their salvation as best they 
could. The infringer proceeded to furnish the material contracted 
for and delivered it to the Navy Department. The furnishing of that 
material was used as the basis for contempt proceedings instituted by 
our company, and because of the manufacture and delivery to the 
Navy Department of that material the officers of the infringing com- 
pany were committed for contempt of court and are now fugitives 
from justice, or were for a time. They were irresponsible people. 

Mr. Wilson, of IlKnois. Who are they ? 

Mr. Hayden. They were officers of the De Forrest Company, 
Abram White, and Doctor De Forrest. 

Mr. Wilson, of Illinois. He is not a fugitive from justice ? 

Mr. Hayden. Not now. 

Mr. Wilson, of Illinois. Was he ? 

Mr. Hayden. He was, but has since then paid his fine. All of that 
appears of record in the circuit court. I can produce the record if 
desired, but that my statement is true will hardly be denied by any- 
body. 

Mr. Lenroot. Is the Government now using or manufacturing this 
material ? 

Mr. Hayden. Yes, sir; all the time. It is being manufactured in 
the navy-yards. 

Mr. Lenroot. What position does the Government take ? 

Mr. Hayden. Simply that it wants to make and use the inventions, 
and that it is not for the department to look after the interests of 
patentees. 

Mr. Lenroot. Have you the correspondence with the Government 
upon that subject? 

Mr. Hayden. I have. There has been none of recent years. After 
bringing the matter to the attention of the Navy Department and 
asking for protection and the compensation that we were entitled to 
and finding that it was impossible to get it or to negotiate with the 
department to that end, we abandoned the idea of reaching an 
adjustment with the department. That correspondence is procurable 
to-day and I can furnish it to the committee, if desired. I do not 
want the committee to think, however, that this bill is intended to 
redress our grievance or that its effect would be limited to the 
National Electric Signaling Company. Its purpose is to give every 
owner of an American patent whose patent happens to be used by 
the Government, the right to go to the Court of Claims and get fair 
compensation for such use of it as the Government makes. 

Mr. Wilson, of Illinois. Does the Government use your patent in a 
combination with other patents or solely your own ? 

Mr. Hayden. As to that, I can not say. I am not an expert in 
wireless telegraphy nor in patent matters. It does use the National 
Company's inventions, beyond doubt. Whether it uses them in 
combination with others, I can not say, nor do I think that very 
material, if our inventions are in any way incorporated in the 
apparatus. 

Mr. Wilson, of Illinois. I just wondered whether the Government 
was using your inventions in connection with its wireless stations? 

Mr. Hayden. It has a variety of apparatus. Whether it has 
combined several inventions in one instrument, I do not know. 
Presumably it has, because that is almost always the case in any 
complicated machine. 



8 STATUTES RELATING TO PATENTS. 

Mr. Wilson, of Pennsylvania. Wliat would be the effect of this bill 
in cases of this character where some man is an employee of the 
Government and as such, through the work that he is following,, an 
original patentable idea develops with him and as a matter of course 
is the property of the Government or would be ; he afterwards leaves 
the employment of the Government and continues the development 
of that idea and the Government takes over the developed idea; 
would this require the Government to pay for that ? 

Mr. Hayden. That question, sir, has been passed on by the 
Supreme Court in two cases — Solomons v. U. S., 137; U. S., 342, 346; 
Gill V. U. S., 760; U. S., 426 — where it was held that as between the 
Government and its employees the same rule applies as between 
private citizens, an employer and his employees. The Government 
has a shop right where the invention is produced by its employee in 
time which he should devote to the government business, or who 
uses government material, or where the improvement is in the direct 
line of his employment. 

Mr. Wilson, of Pennsylvania. That part has already been decided ? 

Mr. Hayden. Yes, sir. 

Mr. Wilson, of Pennsylvania. But suppose the man leaves the 
employ of the Government, though the line of thought was developed 
while he was in the employ of the Government, during the time he 
should have been working for the Government, and after he leaves 
the employ of the Government he still further develops the same idea 
and develops a patent; would the Government under this bill be 
required to compensate him? 

Mr. Hayden. I can best answer that by saying that the Govern- 
ment's situation would be like that of any employer, and we think 
that it can not ask to be put in any different position. I contend that 
in business transactions it should deal with its citizens on the same 
basis that a private corporation is compelled to. 

Mr. Lenroot. Do you believe that the Government should abolish 
the rule that the Government shall not be sued without its consent ? 

Mr. Hayden. No, sir; I do not believe in that as a general propo- 
sition. 

Mr. Lenroot. What is the distinction ? 

Mr. Hayden. There are many cases, for instance, where persons 
who are intrusted with government property mismanage it and in- 
flict injury on private citizens. Take, for instance, a collision at 
sea between a naval vessel and a merchantman. There the Gov- 
ernment ejets no benefit from the collision, although it inflicts injury 
on the citizen. In such a case there is no provision of the Constitu- 
tion to the effect that the injured party shall receive compensation. 
I do not think that the general jurisdiction of the court should be 
extended to such cases. But where the wrong done by the Govern- 
ment consists in taking a man's property and converting it to its own 
use, there the Constitution sa3''s that the owner shall haA^e just com- 
pensation, and there, I say, we should have a remedy by whicli to 
obtain just compensation. That is the distinction. In the one case 
the Government does not benefit from the wrong which it does, and 
in the other case tlie wrong results in the Government's emolument. 
In fact the wrong is done in order that the Government may profit. 
We say that the Government should not be enriched at the expense 
of any one citizen. That is forbidden by the Constitution. 



STATUTES RELATING TO PATENTS. 9 

Mr. Lenroot. There are, however, a lurge chiss of cases where the 
Government does benefit, for instance, in money paid into the Treas- 
ury, where it can not be recovered except by action of Congress? 

Mr. Hayden. That is only where payments are made voluntarily. 
There the same rule prevails that applies between individuals. 
Where a payment is made voluntarily the party making it can not 
recover the amount. 

Mr. Lenroot. In many cases there is action for money received, 
but that would not lie against the Government ? 

Mr. Hayden. That is not the case where the payment is demanded 
and the validity of the demand is conceded and money is paid 
wdthout protest. This rule with respect to voluntary payments 
prevents the recovery of taxes paid into the Treasury where the 
Government has no legal right to collect them. It is a well recognized 
rule, but it does not apply where property is taken for public use, 
perhaps, without the knowledge of the owner. 

That brings me to the consideration of a matter that has been called 
to my attention by the chairman within the past few days. There 
is now pending m the Supreme Court on writ of certiorari a case 
brought in the local court by the Krupp Company against General 
Crozier, Chief of Ordnance, in which it asks for an injunction to 
restrain him and his subordmates from making guns for the army 
according to the Krupp patent. 

The Chairman. I wish you would make the decision of Judge Robb 
a part of the record. 

Mr. Hayden. Yes, sir. 

The decision of the court of appeals of the District of Columbia 
follows : 

Court of Appeals of the District of Columbia. 

fried. krupp aktiengesellschaft, appellant, v. william crozier. 

Patents; Infringement by Officer of United States; Suit to Enjoin. 

[Appellant, owner of certain letters patent of the United States for improvements in field guns and gim 
carriages, brought suit against defendant. Chief of Ordnance of the United States, to enjoin the infringe- 
ment by him, his agents, and employees, of said letters patent in the manufacture of field guns and car- 
riages for the United States. The defendant demurred on the ground that the suit was in efiect against 
the United States. Held, that assuming the truth of the allegation of infringement, complainant was 
entitled to an injunction; and a decree sustaining the demurrer reversed. No. 1877. Decided October 
7, 1908.] 

Appeal by complainant from a decree of the supreme court of the District of Colum- 
bia, in equity. No. 27144, dismissing a bill for an injunction. Reversed. 

Mr. Harry G. Kimball and Mr. F. D. S. Bethune for the appellant. 

Mr. Stuart McNamara for the appellee. 

Mr. Justice Robb delivered the opinion of the court. 

This appeal brings into review a decree of the supreme court of the District dis- 
missing appellant's bill of complaint. 

Appellant, a corporation organized under the laws of the German Empire, seeks to 
enjoin William Crozier, Chief of Ordnance of the United States Army, his agents 
and employees, from manufacturing field guns and gun carriages in infringement of 
certain letters patent of the United States regularly issued to Fried. Krupp, of Ger- 
many, two on March 17, 1903, and one on May 30, 1905, numbered 722724, 722724, 
and 791347, respectively, which patents were subsequently assigned to appellant 
and the assignments duly recorded in the Patent Office of the United States. 

It was stipulated below that no pecuniary benefit has accrued to the defendant 
Crozier by reason of the acts set forth in the bill, and plaintiff waives any claim for 
accounting or damages. It was further stipulated that the Government of the United 
States and its Ordnance Department have manufactured, and intend to continue the 
manufacture and use, or cause to be manufactured .for the use of the Government, 



10 STATUTES RELATING TO PATENTS. 

field guns and carriages made after the models referred to in the bill (''the claim or 
claims of complainant being in nowise admitted"); and that the defendant Crozier 
is the officer in the service of the United States who directs and is in charge of such 
manufacture of said field guns and carriages for the United States. 

To the bill as thus amended by stipulation the defendant demurred, the ground of 
the demurrer being the contention that the suit is in effect against the United States. 
This appeal followed the decree of the court sustaining the defendant's demurrer. 

That the United States, its officers and agents, have no right, title, or interest in 
the patents involved in this suit is not denied. That these patents are the exclusive 
property of appellant is not denied, and, indeed, could not be in view of James v. 
Campbell (104 U. S., 356), and Belknap v. Schild (161 U. S., 10). That the Patent 
Office of the United States issued these, patents in pursuance of law and therein pur- 
ported to grant to the patentee, his heirs and assigns, for a stated period "the exclusive 
right to make, use, and vend the invention or discovery throughout the United 
States" is admitted; but, it is contended, in behalf of appellee, that because this 
inexcusable encroachment upon the rights of appellant inures to the benefit of the 
Government the courts are powerless to stay the hands of the wrongdoer. If such 
be the case, one department of the Government may without warrant or authority, 
and in direct violation of the rights of third parties nullify the lawful acts of another 
department of the Government. 

We can not believe that in the eyes of the law it is any less obnoxious for an officer 
of the Government to appropriate property for the benefit of the Government, under 
the conditions surrounding this case, than it would be to appropriate it for his own 
personal benefit. Nor do we find anything inconsistent with this proposition in 
either Belknap v. Schild, supra, or International Postal Supply Co. v. Bruce (194 
U. S., 601). 

In Belknap v. Schild it was sought to restrain the commandant of the United States 
Navy- Yard at Mare Island, Cal., and certain of his subordinates, from using a caisson 
gate which had been theretofore installed at that place in violation of plaintiff's patent 
and also to have said gate destroyed or delivered to plaintiff. In denying the relief 
sought the court said: "The caisson gate was a part of the dry dock in a navy-yard of 
the United States, was constructed and put in place by the United States, and was the 
property of the United States, and held and used by the United States for the public 
benefit. If the gate was made in infringement of the plaintiff's patent, that did not 
prevent the title in the gate from vesting in the United States. The United States, 
then, had both the title and the possession of the property. The United States could 
not hold it or use it, except through officers and agents. Although this suit was not 
brought against the United States by name, but against their officers and agents only, 
nevertheless, so far as the bill prayed for an injunction, and for the destruction of the 
gate in question, the defendants had no individual interest in the controversy; the 
entire interest adverse to the plaintiff was the interest of the United States in property 
of which the United States had both the title and the possession; the United States 
were the real party, against whom alone in fact the relief was asked, and against whom 
the decree would effectively operate; the plaintiff sought to control the defendants 
in their official capacity, and in the exercise of then- official functions, as repre- 
sentatives and agents of the United States, and thereby to defeat the use by the 
United States of property owned and used by the United States for the common 
defense and general welfare; and therefore the United States were an indispensable 
party to enable the court, according to the rules which govern its procedure, to grant 
the relief sought; and the suit could not be maintained without violating the principles 
affirmed in the long series of decisions of this court, above cited." 

International Postal Supply Co. v. Bruce came before the court on a certificate for 
instruction, from which it appeared that the defendant was postmaster of the United 
States post-office at Syracuse, N. Y., and that his subordinates were using two stamp- 
canceling machines which infringed plaintiff's patent, and which had been hired by 
the United States Post-Office Department for an unexpired term of years. The court 
held the case to be governed by lielknap v. Schild, which, it said, turned on the 
proposition "that they could not interfere with an object of property unless it had 
before it the person entitled to the thing." The court further said: "In the case at 
bar the United States is not the owner of the machines, it is true, but it is a lessee in 
possession, for a term which has not expired. It has a property, a right in rem, in 
the machines, which, though less extensive than absolute ownership, has the same 
incident of a right to use them while it lasts. This right can not be interfered with 
behind its back and, as it can not be made a party, this suit, like that in Belknap v. 
Schihl, must fail. * * * Whether or not a renewal of the lease could be enjoined 
is not before the court." 



STATUTES EELATIXG TO PATENTS. 11 

It will thus be seen that in the Belknap and Bruce cases the subject-matter involved 
was property of the United States, and that therefore the United States was neces- 
sarily a party. In the present case it is not sought to disturb the United States in 
the possession and use of the guns already manufactured. The court is not asked to 
deal with property of the United States. The plaintiff simply asks that an officer of 
the United States be restrained from invading rights granted by the Government 
itself. The acts complained of are not only not sanctioned by any law, but are incon- 
sistent with the patent laws of the United States. 

That "no man is so high that he is above the law" and beyond the coercive process 
of the courts has long since been clefinitelv determined. (Osborn v. U. S. Bank, 
9 Wheat., 738; U. S. v. Lee, 106 U. S., 196: Pennoyer v. McConnaughy, 140 U. S., 1; 
Tindal v. Weslev, 167 U. S., 204; Amer. School of Magnetic Healing v. McAnnulty, 
118 U. S., 94.) 

^Ye can not see that this case differs in principle from the case last cited, which was 
a suit against the United States postmaster in charge of the United States post-oflBce 
at NeA^ada, Mo., to restrain him from carrying out the provisions of a so-called "fraud 
order"' issued by the Postmaster-General. It was held that inasmuch as the 
Postmaster-General in issuing the order exceeded his authority the plaintiff was 
entitled to relief. The court said: "The acts of all its (the Government's) officers 
must be justified by some law, and in case an official violates the law to the injury of 
one individual the courts generally haA^e jurisdiction to grant relief." 

If an officer who in good faith is attempting to execute the command of his supe- 
riors, a command issued in supposed obedience of express statute, is su]3Ject to the 
injunctive process of the courts, much more ought an officer to be restrained whose 
only excuse for violating private rights is that he is acting for the benefit of the 
Government. 

Assuming for the purpose of this opinion the truth of the allegation of infringement, 
it is apparent that unless the relief sought is granted plaintiff's patents will be value- 
less in the United States, since they are of use to the Government alone. 

It follows that the decree must be reversed with costs, and the cause remanded for 
further proceedings not inconsistent with this opinion. 

Reversed. 

Mr. Haydex. I handed the chairman a copy of the transcript of 
record in the Supreme Court, but I wish to say this with regard to the 
case, assuming that the committee is more or less famihar with that 
situation. The remedy sought and given there is not complete or 
adequate. The Krupp Company asks only for an injunction. It does 
not ask for any compensation for the use made of its patents prior to 
final decree. It does not ask for an accounting or mesne profits or 
the like remedies which go to make up the complete remedy in a suit 
between individuals. An injunction pure and simple would not be 
a complete remedy, for a very practical reason. Say, for instance, 
my client, the National Electric Signaling Company, should bring suit. 
The Government would say: ^^ We neither admit nor deny that we are 
using this invention." The officer who is manufacturing these articles 
for the Government or who is using them on behalf of the Govern- 
ment has no interest in the matter and is gaining no personal benefit. 
We would have no right to recover damages from him. We would be 
obliged to prove infringement, and then after three or four years of 
litigation and after the Government has had the benefit of the 
invention there would be a decree of injunction by the lower court. 
An appeal would be taken to the court of appeals and a year or more 
consumed in disposing of that. Next the Government would carry 
the case up to the Supreme Court, where it would wait two years for 
hearing. Then at the end of five or six years in all we might get an 
effective injunction. The life of a patent is only seventeen 3^ears. 
If at the end of five or six years a patentee can only restrain the 
further use of his patent, without any compensation for the use 
already made by the Government, I submit that his remedy is not 
adequate. 



12 STATUTES RELATING TO PATENTS. 

The Chairman. Mr. Dyer is here at the invitation of the committee 
to speak this morning on some matters. You have already taken 
up a Httle over twenty minutes. 

Mr. Hayden. I have trespassed on the committee's time in former 
years, and I do not desire to do so now. I am very glad to make 
way for Mr. Edson and Mr. King, who ask to be heard in support 
of this bill (IL R. 12368). 

The Chairman. The committee will probabty have to give a 
further hearing on this matter. As I say, Mr. Dyer is here at the 
express invitation of the committee, and we must give him some 
time. How much time do you desire, Mr. King? 

Mr. King. Twenty minutes. 

The Chairman. We will continue the hearing on this bill for 
fifteen minutes. 

STATEMENT OF MR. GEORGE A. KING, ATTORNEY AT LAW, 

WASHINGTON, D. C. 

Mr. King. Mr. Chairman, I do not appear here in behalf of any 
particular interest, but my work is mainly in the Court of Claims 
and in government matters, and I am constantly being consulted 
by owners of patents as to the remedy that they have against the 
Government, and as this bill has once received the approval of this 
committee, not of this committee only, but of the House of Repre- 
sentatives and the Senate, and failed of signature merely on account 
of time at the last Congress, it seems to me that to say a few words 
here in the line of matters that are within my knowledge, having 
studied the decisions of the Court of Claims and the Supreme Court, 
would, perhaps, be proper and may give the committee some little 
information. 

The decisions of the courts on the subject of the use of patents by 
the Government have been uniform since Judge Nott delivered a 
very important opinion in the case of McKeever, in the fourteenth 
volume of the Court of Claims, to the effect that the exclusive right 
secured by the Constitution in the provision for the grant of exclusive 
rights to inventors of new discoveries, and which are secured b}^ the 
patent laws of the United States, extends to the use by the Govern- 
ment as well as to the use by individuals. The decision of the Court 
of Claims in the McKeever case was affirmed by the Supreme Court 
on the opinion of the Court of Claims, and without any new opinion 
of its own, that decision being noted in the eighteentli volume of the 
Court of Claims, page 757, and, as stated by Mr. Walker in his work 
on patents, the affirmance by the Supreme Court in that way was a 
deserved compliment to the learning and ability of the Court of 
Claims. In that opinion Judge Nott referred to the fact that in 
England at that date the exclusive right granted by a patent did not 
debar the Crown from using a patent, but Ens2land has prop:ressed 
in that respect since that time, and at the present day, by act of 
Parliament, quoted in the letter of Commissioner Moore to this com- 
mittee and ])rinted on page 49 of the hearings that took place here 
on the 23d and 24th of P'ebruary, the Crown is now debarred from 
using a patent without making compensation, but the jurisdiction 
of the Court of Claims at. the present time extends only to cases 
arisinjr on contracts with the Government, and it has been held bv 



STATUTES RELATING TO PATENTS. 13 

the Supreme Court of the United States in two cases, the SchiUinger 
case (155 U. S., 163) and Russell (182 U. S., 516), that unless there 
is some kind of a contract ^\dth the Government, no matter how 
much benefit the Government may have derived from a patented 
invention, there can be no suit brought in the Court of Claims. In 
both of those cases there was very strong dissent on the part of 
several members of the court, and in the SchiUinger case especially 
there was a ver}^ strong and earnest dissenting o] inion by Mr. Justice 
Harlan of that court. The hardship and injustice resulting from 
that ruling is so great that the courts wiW go a long way in trying 
to spell out, as it were, a contract from correspondence that is of 
quite an indefinite character between an inventor and the officials 
of the Government. Thus, in the case of Palmer (128 U. S., 262) 
there was simply an offer by the patentee to the officers of the Gov- 
ernment to use his invention if they paid him for it and some letters 
of an indefinite character from the head of the office using the inven- 
tion saying that if the invention was as claimed, and the Government 
was using it, there was no objection to giving him a fair compensa- 
tion, and upon that the courts decided that there was a contract. 

The Chairman. Since the decision in that case, have the govern- 
ment officials been writing such letters ? 

Mr. King. Sometimes they do and sometimes they do not. It 
depends largely on the humor of the head of the department, and 
whether he is a man with a strong sense of justice to which the rights 
of the patentee make an appeal. Sometimes they do not write them. 
It is a fortuitous distinction, a pure accident, that is utterly unworthy 
of the jurisprudence of the courts. The point should be in all these 
cases, not does an officer of the Government acknowledge that there 
is an invention and promise to pay for it, but is the Government get- 
ting the benefit of a patented invention, and that is the basis of this 
bill. It gives compensation where the inventor's patent, secured to 
him by letters patent of the United States, is in fact used by the 
Government and the Government gets the benfit of it, and that is the 
only test, not whether some officer of the Government has through 
favor or justice or any other consideration \M:'itten him a letter, or 
whether out of ill-humor or caprice or desire to spare the Government 
expense, praiseworthy in itself, but sometimes going to extremes, has 
refused to allow him any compensation, no matter how^ meritorious 
the invention may be, and we think that is a sound principle on which 
legislation ma}^ properly rest as to whether there has been in fact a use 
by the Government, not only that it is giving a remedy for the viola- 
tion of an acknowledged right, not a doubtful right, but a right that 
the courts say does in fact exist ; and Justice Brewer, in deciding this 
case of SchiUinger that I mentioned m the 155th United States, said 
in his opinion, at page 168, that a bill with a few lines would wipe out 
that distinction between cases in which there has been and has not 
been a promise. This is the very bill, with a few" lines, that Justice 
Brewer said would w^ipe out that unfounded distinction. 

Now, Mr. Chairman, so much for the side of the inventor; but let 
me suggest to you that there is a side of the Government in this bill, 
a direction in w^hich the Government derives an advantage from the 
legislation which is proposed. Mr. Hayden referred here to the suit 
of the Krupp Company against General Crozier, the Chief of Ordnance, 
in which the court of appeals of the District decided that he was 



14 STATUTES KELATING TO PATENTS. 

entitled to that injunction, for the reason, as the court of appeals said 
in its decision, reported in 32 Appeals, D. C, page 1, the patent was 
valueless in the United States unless the Chief of Ordnance were 
debarred from using it without compensation, for the reason that the 
invention has no value to anybody but the Government ; that nobody 
but the Government has any use for heavy ordnance. Here is a 
private corporation doing business over in Germany that gets an 
injunction against the head of the Bureau of Ordnance of our army 
against using a gun until he makes terms with that corporation. Of 
course, our relations with Germany, and happily with all nations of 
the world, are at present very pacific; but is it not easy to suppose, 
without any stretch of imagination at all, that there might be times 
when if the head of a great department were prohibited by an injunc- 
tion from getting heavy ordnance of a particular kind it might be 
exceedingly damaging and might result in great injury to the opera- 
tions of the Government ? 

Now, I am perfectly free to concede, if it is a concession, that the 
enactment of a bill like the one introduced by Mr. Dalzell, which is now 
before your committee, would lead the courts in a similar case to this 
Krupp case to refuse absolutely to issue an injunction to the owner 
of a patent who sought to prohibit its use. A bill in equity, as is 
familiar law — every student reads it when he first begins to study the 
subject of equity — a bill in equity can only be maintained where there 
is no complete and adequate remedy at law. The court of appeals of 
the District referred to the fact that there was no such remed}^ at law 
in this case and therefore they granted the injunction. 

The Chairman. It is your opinion, then, that if they had a remedy 
at law the injunction would have been reifused? 

Mr. King. Yes, sir. 

The Chairman. And would be refused by the courts in all similar 
cases ? 

Mr. King. . I am quite sure of that. 

Mr. Lenroot. No injunction would be proper if the defendant was 
insolvent ? 

Mr. King. In the first place, it can never be assumed that a private 
defendant is going to continue insolvent until the end of the seventeen 
years, the life of the patent, and in the second place, a private indi- 
vidual has not the right which is conferred upon the Government b}^ 
the bill to use the property on paying reasonable compensation. 

The Chairman. Can we do that ? 

Mr, King. Well, the whole subject of patents is, by the Constitution, 
within the control of Congress. I do not know what there is in the 
Constitution to prevent you from giving to the officers of the Govern- 
ment, by legislation, the right to use an}^ and every invention, sub- 
ject only to the constitutional condition that reasonable compensa- 
tion shall be paid to the inventor — the fifth article of amendments to 
the Constitution. 

The Chairman. But the article which authorizes Congress to 
grant patents uses the word ''exclusive." 

Mr. King. True. 

The Chairman. Can you make an exception in favor of the Govern- 
ment? 

Mr. King. I do not see why not. As long as the whole subject of 
granting exclusive rights at all is within the control of Congress, why 
can not a qualification be made in favor of the Government ? 



I 



STATUTES KELATING TO PATENTS. 15 

Mr. Fisher. Can the Government take any private property with- 
out compensation? 

The Chairman. Not as a matter of right; but suppose it does, 
what is the remedy ? 

Mr. Edson. The bill under consideration mereh' provides that in 
case of use by the Government the owner ma}^ recover reasonable 
compensation for such use. It does not give an}^ power to secure an 
injunction. 

Mr. King. Xot at all. The fifth article of the amendments to the 
Constitution is in negative terms, '^ nor shall private property be taken 
for public use, without just compensation," but it has always been 
held that that implies an affirmative; that is, on making compensation, 
the Government may take any property — and patents are surely no 
exception to the rule — that the Government may take any property 
on making fair and reasonable compensation to the inventor exactly 
as is done by this bill. 

Mr. KtJSTERMANN. Tlic Krupp Company procured an injunction. 
Could any party living in this countiy, a citizen of this country, 
procure a similar injunction ? 

Mr. King. Just the same. 

Mr. KtJSTERMANN. There is some justice in that; and they can pre- 
vent them from going on with the use ? 

Mr. King. Yes, sir. 

Mr. KtJSTERMANN. There is some remedj" there? 

Mr. King. Yes, sir; there is a great deal of remedy there, but it 
seems to me that it is a remedy that is opposed to public policy. 

The Chairman. There is remedy so far as the Government is 
concerned ? 

Mr. King. Unquestionably. 

Mr. Fisher. Adequate remed}^? 

Mr. King. It is really not adequate. It is not always an adequate 
remedy for the inventor. Very often in cases the patents are being 
used and sometimes the use may be going on for years without the 
patentee knomng that the Government is using his iuA^ention, because 
a person can not walk into a naval gun shop and see what is going 
on, as they are very particular about letting people enter there. 
Things may be used in the post-office for years without it being ascer- 
tained. Apart from the danger that I have suggested of the manu- 
facture of heavy ordnance being stopped at a time when the Govern- 
ment needs it, immense inconvenience might be caused to the postal 
service by the Government being stopped from using a postal device 
which it might very much need. There is another question, the 
benefit to the Government, and that is very clearly and succinctly 
stated in the report of this committee by Mr. Hinshaw in the last 
Congress, and that is that all the incentive is taken away from 
inventors to work on inventions useful only to the Government. A 
man might invent a new brand of chewing gum or a child's game and 
make a fortune, and he may invent a useful gun or gun carriage, 
or a new style of armor or a useful device in the post-office that would 
save a gTeat deal of money to the postal service and get nothing at 
all for all his time and labor, except at the caprice or whim of some 
officer of the Government. 

It has been asked here whether the Government can be sued with- 
out its consent. It can not be sued without its consent, but Chief 



16 STATUTES RELATING TO PATENTS. 

Justice Chase said in a decision which is reported in 13 Wallace, 
128 (at p. 144), in the Klein case: ^'It was urged in argument that 
the right to sue the Government in the Court of Claims is a matter 
of favor; but this seems not entirely accurate. It is as much the 
duty of the Government as of individuals to fulfill its obligations." 

Mr. Wilson, of Pennsylvania. If the Government can not be sued 
without its consent, how can an injunction obtained against the 
Government restrain it ? 

The Chairman. The injunction was not against the Government, 
but against General Crozier. 

Mr. Wilson, of Pennsylvania. I understand that perfectly, but 
governments are inanimate things in themselves and only exist 
through the active living beings that conduct them and so the injunc- 
tion is against the individuals conducting the Government or han- 
dling the affairs of the Government and so an injunction against an 
officer would undoubtedly be an injunction against the Government. 
How could it possibly obtain under the existing form of government ? 

Mr. King. The very objection you suggest was most vigorously 
and ably made by the United States attorney who appeared by 
direction of the Attorney-General in the suit in behalf of General 
Crozier. He claimed that an injunction against General Crozier 
would in effect be an injunction against the Government, but the 
Court of Appeals said that that was not so, that it was an injunction 
against him only as an individual, even though he was exercising the 
authority of the Government, he had no power or right to violate a 
private right. I admit that the distinction is an exceedingly fuie 
one and strong argument may be made along the line you have sug- 
gested and doubtless will be before the Supreme Court of the United 
States in that very case. Whether or not it be sustained by the 
Supreme Court makes no difference so far as the right and justice of 
securing to the inventor the right to reasonable compensation for the 
use of his invention. 

Now, inquiry was made as to whether it would not be better to 
leave the determination of the amount of compensation due an 
inventor to some executive department or commission. Reference 
has frequently been made in the decisions of the courts and notably 
in the decision of the case filed in the Supreme Court, in which my 
friend, Mr. Hayden, was counsel, of William Cramp's Sons (decided 
February 28, 1910, will be reported in 216 U. S. Reports) to the fact 
that the executive departments have neither the power under existing 
law, nor have they the machinery for investigating these questions 
of unliquidated damages that require computation. So far as the 
question of expense is concerned I do not believed that there is in 
all this country a court of such magnitude as the Court of Claims that 
is so absolutely economical to the Government in its operations as is 
the Court of Claims. 

Mr. KtJSTERMANN. What is the expense of bringing a case before 
the Court of Claims ? 

Mr. King. Well, it would be about Hke this: The statutes de- 
fining the jurisdiction provide just what expenses shall be paid by 
the party bringing the suit and by the Government, and among 
other things they provide that the fees of all witnesses appearing on 
behalf of the claimant in that court and the fees of the commissioner 
examining the witnesses shall be paid by the claimant, and I may add 



STATUTES EELATING TO PATENTS. 17 

that in no case does the claimant recover those costs from the Govern- 
ment even though he succeeds in his suit. He never recovers any- 
thing but the principal sum ^\4thout any costs and wdthout any 
interest, and no exception is made in this bill, nothing but the prin- 
cipal sum without any costs and ^\4thout any interest, while on the 
other side, the cost of examining all witnesses introduced on behalf 
of the Government shall be paid by the Government out of whatever 
appropriations shall be made for the Department of Justice. 

The Chairman. I am exceedingly sorry to interrupt you, and the 
committee is very much interested in your statement, but you have 
already consumed twenty minutes. 

Mr. Bradford. That means if suit is instituted in the Court of 
Claims that the Court of Claims ^vi\\ be given jurisdiction to decide 
the question of the validity of the patent? 

Mr. King. Unquestionably. 

Mr. Lenroot. I would like to have an expression from some one of 
3'ou gentlemen upon the question of the Court of Claims being a 
proper forum for determining that question. 

Mr. Bradford. I am heartily in favor of the passage of this bill, 
and I believe the entire patent bar is, but there is a question which 
arises right there that ought to receive very careful consideration. 
Under our present judiciary plan all appeals in patent cases start with 
the various courts of appeals, and there is no appeal to the United 
States Court of Claims. 

]Mr. King. To the Supreme Court on questions of law only. 

Mr. Bradford. Does appeal lie on a question of validity of the 
Supreme Court ? 

Mr. King. No, sir; but on all questions of law. 

Mr. Bradford. I am not familiar with the practice in the Court of 
Claims, but would it not be just as well as long as you are giving 
jurisdiction in these cases to give the jurisdiction to the courts who 
now have jurisdiction over patent cases, the various circuit courts, 
from which an appeal lies to the circuit court of appeals ? The Court 
of Claims now does not have an}^ jurisdiction over that, a jurisdiction 
which is now vested specifically in a certain class of courts. 

Mr. Hayden. The Court of Claims, as a matter of fact, does deal 
with the question of validity. If a case is brought there based upon 
an implied contract, the court inquires among other things whether 
the patent in suit was valid. 

Mr. King. The Court of Claims has had a great deal of litigation in 
patent cases, in cases arising on contract, and I think in any case in 
which the Court of Claims has dealt with the questions of patent, it 
will be found that it has dealt with them in an exceedingly intelligent 
manner. 

The Chairman. In a matter of contract, is the question of the 
validity of the patent passed upon by the court ? 

Mr. King. Yes, sir. 

The Chairnam. Will you cite a case ? 

Mr. King. Yes, sir. In the Morse-Arms case (16 Ct. Cls., 296) the 
court said, at page 303 : 

The statutes which allow indi\dduals to question the validity of a patent do not shut 
out the Government from the same right. The Government's rights are certainly as 
broad as those of the citizen. 

34077—10 2 



18 STATUTES EELATING TO PATENTS. 

Mr. Bradford. I would like to ask, after the Court of Claims has 
decided a patent invalid, would the litigant have the right of appeal ? 

Mr. King. Yes, sir; but the finding of the Court of Claims would 
be conclusive. 

I have prepared a little memorandum, which I would like to file 
with the committee. 

The Chairman. We shall be very glad to have it. 

(The memorandum submitted by Mr. King follows:) 

MEMORANDA FOR REMARKS BEFORE HOUSE COMMITTEE ON PATENTS ON BILL GIVING 
THE COURT OF CLAIMS JURISDICTION OF SUITS BASED UPON THE USE OF PATENTS BY 
THE GOVERNMENT. 

[House bill 7120, introduced by Mr. Dalzell.] 

The bill now before the committee is for the purpose of affording a remedy to a 
patentee whose invention covered by his patent is used by the United States. 

A most thorough examination was given to the question of the right of the Govern- 
ment to use inventions covered by letters patent by the Court of Claims in the case of 
McKeever (14 C. Cls., 396). The opinion of the court there delivered by Judge Nott, 
later chief justice of the Court of Claims, carried the discussion of the subject far back 
in England. It was there found that the patent law of England does not exclude the 
Crown from the use of a patented invention without compensation. England has 
advanced since that time, however, for by the English patent law, as shown on page 
49 of the hearings before this committee on these bills, it is provided "a patent shall 
have to all intents the like effect as against His Majesty, the King, as it has against a 
subject," with provisions following as to the mode of determining the compensation 
to be paid the inventor for the use of his invention. 

In this noted and historic opinion Judge Nott goes on to show that the American 
law recognizes and always has recognized that a patent can no more be violated by the 
Government than it can by a private individual or a corporation. In support of this 
view, he quotes several decisions of the Supreme Court, as follows (14 C. Cls., 422): 

"In Burns's case (12 Wall., 246) it was held that the inventor's license to the Govern- 
ment to use his patented invention was a valid consideration to support an action on 
an express contract for the royalty. In Cammeyer v. Newton (94 U. S., 225), in 
delivering the opinion of the court, Mr. Justice Clifford says: ' The rule of law is well 
settled that an invention so secured is property in the holder of the patent; and that, 
as such, the right of the holder is as much entitled to protection as any other property 
during the term for which the franchise or the exclusive right or privilege is granted.' 
And alluding to the previous decision in Burns's case, he adds (p. 234): 'Agents of the 
public have no more right to take such private property than other individuals under 
that provision (Patent act 1870, 16 Stat. L., 198, sec. 22), as it contains no exception 
warranting any such invasion of the private rights of individuals. Conclusive support 
to that proposition is found in a recent decision of this court, in which it is held that 
the Government can not after the patent is issued make use of the improvement any 
more than a private individual, without license of the inventor or making him 
compensation.' " 

This case was carried to the Supreme Court of the United States, by whom the 
decision of the Court of Claims was affirmed on the opinion of the Com-t of Claims 
(18 C. Cls., 757). 

Mr. Walker, in his standard work on patents, second edition, section 391, remarks, 
in regard to this action of the Supreme Court: 

''This omission to review the reasoning of the court below was a deserved compli- 
ment to Judge Nott, who delivered the opinion in the lower tribunal. That opinion 
is one of the most able patent-case opinions ever rendered in the United States; and 
not the least of its merits resides in the fact that the decision is confined to the precise 
issues at bar." 

This decision might, at first sight, be thought to indicate that patentees already 
possess protection in the remedy which they now have in the Court of Claims for the 
infringement of their rights by the Government. The courts have, however, found 
a difficulty standing in the way of granting to inventors a right to damages against the 
Government in cases where their patents have been used, in the fact that the statutes 
defining the jurisdiction of the Court of Claims confine it as a rule to cases arising upon 
contract with the Government. 



STATUTES RELATING TO PATENTS. 19 

The character of these decisions is illustrated by the two referred to in the letter 
of the Commissioner of Patents, contained on page 49 of these hearings, of Schillinger 
(155 U. S., 163) and Russell (182 U. S., 516). In each of these cases it was claimed 
by the patentee and clearly established to the satisfaction of tlie court that his patent 
right had been infi'inged by the action of authorized officers of the Government under 
circumstances which would clearly entitle him to bring an action at law for damages 
against a private individual or corporation, or, at his option, a bill in equity for an 
accounting and injunction. It was held, however, that inasmuch as no contract was 
made, the Court of Claims had no jm-isdiction to try or decide the case. 

The hardship and inequitable character of these rulings is so great that the courts, 
in an endeaA'or to do ju&tice, try to spell out a contract fi'om almost any negotiations 
or correspondence between a patentee and officer of the Government intending to 
show that a patentee has licensed the Government to use his invention and that the 
officers of the Government have even in the most remote and indii'ect manner agreed 
to pay him for its use thereof. Thus, in the case of Palmer (128 U. S., 262) the pat- 
entee' invited the Government to adopt his patented infantry equipments, and the 
Government did so. This was held to amount to an implied contract. 

In the case of the Berdan Fii-e Arms Company (156 U. S., 552) the patentee com- 
municated his invention to the officers of the Government and they used it without 
expressly repudiating his title. These facts were held to give rise to the implication 
of a contract. 

The line is so slight as to be little more than fortuitous, and the distinction is one that 
is utterly unworthy of a great Government desiring to do impartial justice to all citizens. 

If the Government has no right to use a patented invention without making com- 
pensation to tJie inventor, then the question whether it is to do so or not is one that 
should not depend upon the hazard or caprice of officers desiring to recognize the 
right of the inventor and to make compensation to him for the use. ^liether the 
government officers agree or do not agree to pay, the inventor should in every case 
have the right to claim from the Government, by a proper proceeding in court, that 
compensation for the use of his invention to which the Constitution of the United 
States and the grant of the patent by the Government clearly give him the right. In 
each one of the cases that we have referred to in which there was a decision against 
the patentee there was a dissent by a number of judges, while in those decided in 
favor of the patentee the court was unanimous. In the Schillinger case there was a 
particularly strong dissenting opinion by Justice Harlan (reported 155 U. S., 172-180). 

The remedy to which inventors are driven by the absence of any provision, such 
as the statutes ought to contain, providing for a mode of ascertaining the just com- 
pensation due them for tne use of theh inventions by the Government is well illus- 
trated by a recent decision of the comt of appeals in the case of the Ki'upp Company 
V. Crozier, Chief of Ordnance (32 Appeals D. C, 1). Here the owner of patents for 
heavy ordnance applied for and obtained an injunction against the Chief of Ordnance 
of the Army from manufacturing field guns and gun carriages in infringement of letters 
patent of the United States regularly issued. The court held that the injunction 
ought to be granted. It said that "it is apparent that unless the relief sought is 
granted plaintiff's patents will be valueless in the United States, since they are of 
use to the Government alone." (32 Appeals D. C, 6.) 

This remedy by injunction against the officers of the Government is a most awkward 
one, and in cases like that of the use of heaw ordnance by the Government might 
result in very serious inconvenience and hazai'd to the operations of the Government. 
Manifestly the remedy proposed b}- the pending bill is the right and proper one, alike 
just to the Government and just to the inventor. Let the Government use whenever 
and however it will all guns, armor, and every kind of material of war which may be 
essential for the defense, of the Government and vital even to the secmity of the nation 
in time of existing or threatened warfare. Then, as con-elative to its right to use the 
property, let it make just compensation to the inventor. All this is covered by the 
pending bill, which is a compliance with the constitutional mandates to grant com- 
pensation for private property taken and to secm-e to inventors for a limited time the 
exclusive use to their discoveries. 

As we believe abundantly appears, the adi'antages of the proposition made by the 
present bill are not all on the side of the inventor. The Government, too, gets the 
benefit of it. Not only may it, in case of the passage of this bill, use patented inven- 
tions freely and without liability to be stayed by process of injunction, but there is 
another even greater advantage. At the present time there is no incentive to in- 
ventors to exercise then' genius upon inventions which, as is the case in many depart- 
ments, can be of use only to governments. Such are all kinds of inventions of a 
military or naval character, heavy ordnance, armor, and the like. There are also 
very many other kinds of inventions, such as for postal devices, which can, in the 



20 STATUTES EELATII^G TO PATENTS. 

nature of things, be used only by the Government. What advantage is there to an 
inventor to exercise his inventive skill and genius in these directions when in the 
end he can get no benefit from his device? 

In the report made by the Secretary of Commerce and Labor on this subject, 
printed as House Document No. 914, Sixtieth Congress, first session, it is stated 
(p. 62) that it was judicially found that the Government saved $40,000 by reason of 
the use of a certain caisson gate for a dry dock, yet just because the invention was 
useful only to the Government the patentee went entirely without remuneration for 
his work. 

The subject was very ably reviewed by the report of this committee in the last 
Congress, made by Mr. Hinshaw (H. Rept. No. 184, 60th Cong., 1st sess.), and it is 
submitted that the reasons there given are conclusive and that the bill ought again 
to receive a favorable report by your committee in this Congress. 

Mr. King. In regard to the Court of Claims being a proper forum, 
I can say that the Court of Claims is an exceedingly conservative court 
so far as awarding damages against the Government is concerned. If 
you want a tribunal that is going to be conservative in its award of 
damages, you will do a great deal better in the Court of Claims than 
in the circuit and district courts. 

I thank you very much for your attention. 

The Chairman. We are indebted to you, Mr. King. 

STATEMENT OF MR. FRANK L. DYER, ORANGE, N. J. 

Mr. Dyer. Perhaps before taking up the subject that I want to 
discuss this morning rather informally, I should introduce myself. I 
appear before you to-day in a threefold capacity — first, as a patent 
lawyer, representing Mr. Edison and the various Edison companies 
for a number of years, although I have not been in active practice for 
the past two years; second, as a manufacturer, being at the present 
time the president and the chief executive officer of the various 
Edison companies, employing over 5,000 hands and with an annual 
output of $15,000,000; and, finally, as an inventor, because I have 
filed upward of 100 applications for patents myself, most of w^liich 
have been granted. 

I feel that in criticising the patent system I may be committing a 
sacrilege, because I realize that most Americans feel that a large part 
of our national development has been due to our patent system. My 
own observations have been, however, that American inventors for 
the most part have developed in spite of the patent system, and not 
because of it. It is a fact that every possible obstacle and difficulty 
is thrown in the way of the inventor in developing his invention, in 
securing his patents, and in having them litigated in the courts. 

I believe that the patent system should be very materially reformed 
and that the reforms should take place, not only in the Patent Office, 
but particularly in the federal courts where patents are litigated. 
The fundamental change which has been advocated before this com- 
mittee and which, I think, is very important, is a reform in the char- 
acter and ability of attorneys practicing before the office. The 
British attorneys practicing before the London patent office are 
required to pass a very stringent examination before being admitted 
to practice. I have here (exhibiting) the Transactions of the Insti- 
tute of Patent Agents in London, giving the examination that was 
held in the year 1907. In my office there are five gentlemen who were 
formerly examiners in the Patent Office, but w5io were taken out 
because the Government did not pay them enough money to keep 



STATUTES KELATING TO PATENTS. 21 

them there ; and they tell me that the examinations that are required 
for English attorneys correspond very closely to the examinations 
that are required for entrance into the Patent Office. Surely, it is 
only reasonable that the attorneys practicing before the Patent Office 
ought at least to be of the intellectual caliber of the examiners who 
are within the Patent Office; and who, in a sense, are their opponents. 
The examinations in the Patent Office, as you all know, are very 
imperfect. Mr. Moore, the commissioner, in one of the hearings 
before this committee, said: 

I must confess, however, in regard to the great number of patents issued that there 
is not that degree of validity attached to them that they should have. They are not 
as good as the German patents, by any means, and a great many manufacturers say, 
when a patent is offered them by an inventor, "Have you a German patent? " meaning 
by that if they have a German patent also for the same device, that probably the 
United States patent is a good one. 

Not only are the examinations in many cases insufficient, so that 
when the patent is brought into court it is promptly held to be 
invalid, but in many other cases the actions taken by the Patent 
Office are unreasonable and result in the grant of claims that are 
too narrow; and the inventor finds when he attempts to litigate 
his patent that, if he had only obtained the claim he asked for, but 
which was rejected by the Patent Office, he would have had a much 
better patent and might be able to successfully stop infringements. 
One of the situations that often confronts an inventor in the federal 
courts when he asserts that his claim ought to have a certain inter- 
pretation is for the court to say: ^^No; that claim was made by you 
in the Patent Office and the Patent Office rejected it and you acqui- 
esced in that rejection, and therefore you can riot claim that con- 
struction for your patent here. " If the Patent Office had not rejected 
that claim, he could have asserted that interpretation for it and it 
might have been valid and be held to be infringed. 

Mr. Bkadford. That is the fault of the attorney who prosecutes 
the case. 

Mr. Dyer. Of course I admit that attorneys practicing before the 
Patent Office very frequently obtain claims that are not broad 
enough, that are too narrow to properly protect a man in his inven- 
tion, so that when his claim is brought into court he finds that an 
infringer by making some very trivial change in his invention has 
completely avoided his patent; but nevertheless much of the fault 
rests with the Patent Office in improperly rejecting claims that the 
inventor is entitled to. 

Whether this is so or not can only be determined by an examination 
of the reports to ascertain what proportion of patents have been 
invalid or not infringed and what proportion valid, whether infringed 
or not. When a patent is declared invalid because of anticipation 
by the prior art — and practically all the patents invalidated by the 
courts are so held for this reason — it may be safely asserted that the 
work of the Patent Office was faulty, that the same references pro- 
duced to the court should have been disclosed by the Patent Office, 
and that if such references had been disclosed the inventor would 
either have made his claims definite enough to avoid the prior art 
and still be infringed, or else, finding the claim not infringed, he 
would at least have been saved the annoyance and expense of a 
futile litigation. On the other hand, an examination of the reports 



22 STATUTES KELATING TO PATENTS. 

will show many cases where a patent is held not infringed simply 
because its claim is too narrow to properly cover the invention, the 
limited scope of the claim not being necessitated by the prior art, 
but being due entirely to carelessness or stupidity of the attorney, 
or to an improper and unwarranted rejection by the Patent Office. 
In any case, the inventor is the one who suffers. 

I find from Federal Reporter, volume 142 (May and June, 1906), to 
Federal Reporter, volume 173 (December, 1909, and January, 1910), 
both inclusive, that there were 427 patents litigated. Of that num- 
ber 126, or 29 per cent, were held to be invalid — I might say paren- 
thetically that it is fair to assume when a patent is brought into court 
that the patentee has a reasonable hope of sustaining it, so that the 
percentage of invalid patents as a whole is probably greater — 166, or 
39 per cent, were held to be infringed; and 149, or 35 per cent, were 
held to be not infringed. In other words, more than 60 per cent of 
the patents litigated in those four years were held either to be invalid 
or not infringed, and since the courts endeavor as far as possible to 
sustain patents, the probabilities are that if they were compelled to 
hold that some of these patents were infringed many of that number 
would have been held to be invalid. In the same reports on appeal to 
the circuit court of appeals 340 patents were litigated; 121, or 35.6 

Eer cent, were held to be invalid; 125, or 36.8 per cent, wxre held to 
e infringed, and 114, or 33.5 per cent, were held not to be infringed. 

Mr. Moore. What period w^as that ? 

Mr. Dyer. From May, 1906, to January, 1910. - 

It seems to me these difficulties should in some way be overcome, 
and the suggestion I should make is merely a tentative suggestion, 
and that is to permit the Patent Office to reject claims onl}" when 
they lack novelty, but not to reject them on the ground that they lack 
invention. When a claim is absolutely anticipated on its face, it 
should be rejected, but I think the right should be given to the 
patentee to draft his claim in as broad language as he possibly can, so 
long as it is not absolutely met. He then goes into court with his 
patent, and if the defendant, the man who has appropriated the 
inventor's intellectual property, shows that the Patent Office exam- 
ination was insufficient, as in almost every case it is, and as the com- 
missioner admits, and a new reference is discovered, then the patentee 
should have the right then and there, at the outset of the suit, to 
reform his claim and make it narrower, not to broaden it, but to make 
it just as broad as he can in view of the new art that is disclosed by 
the infringer. He has the same right now in a very roundabout way. 

In the case of the Edison patent on the moving-picture camera 
the patent was involved in interferences and various difficulties were 
encountered in the Patent Office, and it finally issued in 1897. Suit 
was brought and in that suit references were found that the Patent 
Office did not know anything about, principally Belgian and French 
patents, and on the strength of those references the patent was held 
to be invalid because it was too broad. If the references had been 
cited in the Patent Office, of course the claims would have been 
made narrower. Then after the patent was held to be invalid we 
had to file an application for a reissue, and in that reissue we reformed 
the claims in view of the references found in the suit, and those claims 
were then granted. That is the patent now used to control the mov- 
ing-picture art in this country. It took us five A'ears to correct the 



STATUTES RELATIK-G TO PATENTS. 23 

mistake of the Patent Office^ during which time infringers were grow- 
ing fat. I do not think that an inventor should be handicapj)ed to 
that extent. I submit when the Patent Office makes a mistake in not 
citing all the references, the inventor should have the right at any 
time, even after suit is brought, to reform his claim, because I believe, 
Mr. Chairman, that the inventors should be protected to the very 
fullest extent in their intellectual property, and that the patent sys- 
tem should favor them and not infringers. \\'e heard a great deal 
of that during the reform of the copj^right law, a great deal of moral 
and ethical rights, and I think that inventors are as much entitled 
to consideration as authors and composers. Of course, if such a 
change were made it would be with, the understanding, as is the case 
now with reissues, if a claim is reformed no recovery of damages or 
profits could be obtained which accrued prior to the date that the 
claim was changed. 

If the character of the attorneys practicing before the office could 
be improved so that the work of soliciting patents would be placed 
on a uniformly high and dignified plane, and if the system of claims 
was so changed that a patentee would not be absolutely ruined by 
stupidity or carelessness of his attorney or by a failure of the office 
to completely examine the application, or to properly reject it, an 
enormous good would result. But, Mr. Chairman, the principal dif- 
ficulty, the principal expense, the principal hardship and discourage- 
ment to inventors of this country arise outside of the Patent Office; 
they grow out of the practice of litigating patents in the courts. 

The Chairman. That, this committee can not well reform. I 
assume that the Committee on the Judiciary would have jurisdiction. 

Mr. Dyer, I think that would be so, Mr. Chairman. 

The Chairman. Have you any suggestions which you desire to 
make ? 

Mr. Dyer. My suggestion, in a word, is that the practice of Great 
Britain should be followed. The expense of litigating a patent in 
this country is almost beyond belief, and in contrast to the simple, 
orderly, and effective system of the British courts, our practice 
stands as a triumph of circumlocution, red tape, and archaic for- 
malism. The litigation on the Edison lamp through all of its ramifi- 
cations cost $2,000,000. That patent was finally sustained. A new 
defense was then raised alleging that the invention was made by a 
man named Gobel. 

Mr. Wilson, of Illinois. You say the expense of the litigation of the 
Edison lamp patent was $2,000,000 ? 

Mr. Dyer. Yes, sir. 

Mr. Wilson, of Illinois. What was that money expended for? 

Mr. Dyer. Principally in lawyers' fees and attorneys' fees. The 
Gobel defense was thrashed out for several years at an additional 
expense of $500,000, and was finally overthrown a short time before 
the patent expired. During practically the entire life of the Edison 
lamp patent, notwithstanding the most strenuous efforts to bring 
the litigation to a close, infringers with impunity were profiting by 
the invention, and the patentee was powerless to stop them. And 
by reason of additional difficulties of recovering damages and profits 
in patent suits, which I will not bore the committee in describing, the 
patentee to this day has recovered not a cent from the infringers who 
appropriated his property. 



24 STATUTES RELATING TO PATENTS. 

The Chairman. And there was additional Utigation that cost 
$500,000? 

Mr. Dyer. Yes, sir. We often spend at Orange as much as $100,000 
a year now in Htigating patents ; in trying to sustain them in connec- 
tion with our httle company. 

Now, referring to the Enghsh practice in patent suits, I picked up 
at random two reports showing British cases. The first is entitled 
'^ Flour Oxidizing Company (Limited) v. Hutchinson." I have not 
the slightest doubt that if the case were tried in this country it 
would take from five to ten years. It actually occupied twenty-two 
days in March and April, 1909. The action was commenced on 
May 27, 1908, by the filing of the proper complaint, and the actual 
trial began on March 17, 1909, ten months afterwards, during which 
time the pleadings were gone through. On the prima facie case 
there were counsel's opening argument, and seven witnesses were 
examined, six of whom were experts. Defendant's case comprised 
counsel's argument, and 32 witnesses were examined, 5 of whom were 
experts. On the rebuttal case, 9 witnesses were examined, 6 of 
whom were experts. The final arguments for defendant were made 
by two lawyers, and replying arguments were then made for the 
patent, and the case was decided on the same day by the judge, and 
his opinion occupied 15 printed pages. The judge was present aU 
the time, had the opportunity of examining the witnesses, seeing how 
they behaved, and making up his mind whether they were honest 
or otherwise, and became thoroughly familiar with the case and was 
able to decide it the moment the evidence was completed. 

Mr. Lenroot. Was that final ? 

Mr. Dyer. No; that can be appealed. 

Mr. Wilson, of Illinois. How long does it take for an appeal case 
to be decided ? 

Mr. Dyer. Not more than a year at the outside. 

The second case. Holmes v. Associated Newspapers (Limited), 
involved a patent for an improved system and means for driving 
newspaper-printing or like machines at variable speeds by electric 
motors. It was quite a complicated case, and occupied tiYQ days, 
whereas in this country it would probably take as many years. The 
testimony was finished on October 21 and judgment was reserved, 
and five days afterwards the case was decided. In that case on the 
prima facie, four witnesses were examined, including one expert, 
Mr. Dugald Clark. Mr. Clark is a very well-known English expert, 
who was brought over to this country in the Selden case. I do not 
know now how long he was examined, but his deposition is a book 
thicker than that [exhibiting], and my impression is that he was 
under examination three months. The whole thing, including all 
the testimony, was wound up in four days. For the defendant there 
were five witnesses and one expert, and, as I say, judgment was 
reserved for five days and the case decided. If we could only have 
that kind of practice in this country 

Mr. Wilson, of Illinois. Would not that "kill the goose?" 

Mr. Dyer. I am appearing here to-day not so much as a manu- 
facturer, as I am trying to say something for the inventors of tlie 
country. 

Mr. Fisher. There would be more cases to make up for it. 



STATUTES KELATING TO PATENTS. 25 

Mr. Dyer. Able counsel would have nothing to fear. You come 
at the present time before a judge with a record as long as across this 
room (that was the length of the record in the Edison lamp case), 
and he gives you from one to two hours on a side to make the argu- 
ments, and often he has very little idea of what you have been talk- 
ing about when you get through. He reads the record over whenever 
he gets a chance, and at the end of fourmonths or two years, or some- 
times not at all, he decides the case. It has happened in my practice 
that a judge has held a case for two years and then has apparently forgot- 
ten all about it, and he sends for counsel and asks them to argue it again 
and then he decides it. Now, I know that a judge in deciding a case 
under our system, with the enormous amount of testimony, spends 
more than four days of his time, and often probably spends two weeks or 
more of his time. I am convinced, if the committee in some way in its 
wisdom can find a way by wliich patents in this country can be made 
more elastic, so that the faults of the office or attorneys or examiners 
shall not be counted against the inventor every time, so that they can 
receive some protection in the property they have created, and if 
the practice in the courts can be simplified so that their rights can be 
established without the expenditure of tremendous sums of money, 
then I beheve that the patent system would be what most Americans 
think it is — something that fosters and protects American inventions. 

'Mi. Wilson, of Illinois. Do you not think that the Patent OflB-ce 
itself could be improved to such an extent that there would not be 
so much htigation ? 

Mr. Dyer. There is not so much litigation of patents. Here we 
have 427 patent cases in four years. I presume that represents at 
least 100,000 patents granted, so that the Htigated patents are less 
than one-half of 1 per cent. 

^ir. Wilson, of Pennsylvania. You started out with the state- 
ment that you beheved the development of this country through 
invention had grown up, not by virtue of our patent laws, but in 
spite of them. Is it your opinion that any title to a patent would 
exist to any inventor were it not for the patent laws ? 

^Ir. Dyer. Xo, sir; there are, of course, exceptions. I am speak- 
ing now of the general run of cases; I am absolutely certain that the 
large majority of patents are not what inventors beheve them to be. 
If you have occasion to meet inventors, you will find that they always 
have a very mistaken idea about what their patents are. They think 
that they have a patent by which they are going to be protected. 
That is the ordinary belief, and in ninety-nine cases out of a hundred 
it is a mistaken belief. 

Mr. Wilson, of Pennsylvania. Then, notwithstanding the criti- 
cisms made of our patent system, the only title that an inventor has 
is through our Patent Office ? 

Mr. Dyer. Yes, sir; it is better than nothing, of course. 

The Chairman. You would not have the patent law wiped out? 

Mr. Dyer. No, sir; that it, of very great importance. 

The Chairman. What do you think as to compulsory manufacture 
or compulsory license ? 

Mr. Dyer. I would rather not express an opinion. I have no 
definitely formed ideas on that point. 

The Chairman. What have you to say as to when the term of a 
patent should begin ? 



26 STATUTES RELATING TO PATENTS. 

Mr. Dyer. The United States and, I think, Canada are the only 
countries that date a patent from the date of the actual grant. 
Every other country that I know of, England, France, Belgium, 
Russia, Italy, Spain, Norway, Sweden, date patents from the date of 
application, from the actual date of application. Then if a man 
delays the prosecution of his claim in the patent office for any time, it 
does not extend the grant unduly and he has every incentive to take 
his patent out as promptly as possible. It has been proposed that the 
time in which to amend applications shall be reduced from one year to 
six months. That, of course, is an improvement, but it does not meet 
the case at all. In Germany, when an application is rejected by the 
examiner, he states on the bottom of his rejection, ''Reply is due on 
or before a certain date.'' The time allowed American inventors to 
reply to actions of the German patent office is generally three months. 
I imagine that in the case of German applicants the time must be less, 
probably not more than one month. They give us three months and 
we are always able to amend the case. We have to do it. There is a 
time limit set and there is nothing else to be done but to amend them. 
So, when the statement was made before this committee that six 
months would hardly be long enough, it seems to me that that time 
may be too short, only in the most extreme cases where an inventor is 
in some out-of-the-way place and can not be reached, but the Com- 
missioner has always the right to reinstate any case that may be 
abandoned because of failure to prosecute, where it is shown that the 
delay is unavoidable. 

Now, it is the simplest thing in the world to keep a patent in the 
Patent Office for any number of years that you may elect to keep it 
there, and while you are keeping it in the Patent Office you are 
apparently making the most strenuous efforts to get it out. If you 
will recall, the Berliner patent was filed in 1876, the 3^ear that the 
Bell patent was granted. The Bell patent expired in 1893. The 
year that the Bell patent expired the Berliner patent came out, and 
when it was attempted to be shown that in the prosecution of that case 
there had been unnecessary delay, the Bell Company was able to show 
that they had used their best and most strenuous efforts to get the 
patent out. In the case of the Bowers patents on hydraulic dredges, 
those patents were in the office for a great number of years, I do not 
remember how long, and the inventor was able to carry the date of 
his invention back to 1862 and dominate the art from 1862 to some 
time in 1890. The Selden patent is, of course, another horrible 
example of what can be done in the way of holding a patent back in 
the office. 

Mr. KtJSTERMANN. What was the date of that patent ? 

Mr. Dyer. I do not recall. Suppose that I should invent a new 
kind of glass bottle, and in connection with the bottle I invent a new 
process for making it and a new kind of apparatus for carr^dng out 
the process. I file my application on the apparatus, disclosing the 
bottle and the process. I prosecute my application on the apparatus. 
In time I am ready to take it out ; perhaps in five or ten years. I then 
file a divisional application on the process, which is simply another 
way of expressing the same thing, and secure the benefit of my 
original date of application. That second application ma}^ be in 
the office five or ten years. When that is ready to come out, I file 
another divisional application on the article itself which also goes 



STATUTES BELATING TO PATENTS. 27 

back to the original date, and which is kept in the office for five or ten 
years, and in that way there have been instances of the same identical 
invention being actually protected by patents for twenty years or 
thirty years or more. I believe that if this Government would adopt 
the rule that every other government has adopted and date patents 
from the date of application, Mr. Moore would be surprised to see 
how quickly the cases went through the office, because there would 
be an incentive to get them out. Even if it took three years to take 
a patent out, assuming that the patent was dated when the application 
was made, there would still be a longer period to run than in most 
countries. In England it is fourteen years; Germany, fifteen years; 
France, fifteen years. There are only a few countries where there is 
a longer period than in America — Belgium, twenty years; Mexico, 
twenty years; and Canada, eighteen years. I think that change 
would in a large measure prevent this character of patents from 
coming out and dominating arts which have been absolutely devel- 
oped in good faith before the patent is issued. 

The Chairman. Do you know why they can not get out a patent 
in three years from the date of application ? 

Mr. Dyer. Perhaps there may be extreme cases where a patent has 
been in interference and has been held back. I suppose where a pat- 
ent is in interference the patentee can not help hunself . It may be 
kept there five or six years, but even so, the Government always has 
the right to extend patents. 

The Chairman. Do not ever ask us to go into that. 

Mr. Dyer. We must remember, Mr. Chairman, that we do not make 
laws for the benefit of special cases; we try to make them for the good 
of the general average of cases, and I do not believe that there is one 
patent in a thousand that could not be taken out in from one to two 
years. I thank you very much. 

The Chairman. We are very much obliged to you, Mr. Dyer. 

We will be glad to have you gentlemen come here next Wednesday 
morning to say anything you desire in answer to Mr. Dyer's statement 
to-day. 

(Thereupon the committee adjourned to meet on Wednesday, 
March 23, 1910.) 



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